Citation Nr: 9917847
Decision Date: 06/28/99 Archive Date: 07/07/99
DOCKET NO. 95-00 810 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Wilmington,
Delaware
THE ISSUE
Entitlement to a rating in excess of 20 percent for residuals
of a compression fracture of the thoracic spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Miyake, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1973 to
July 1993.
This appeal is before the Board of Veterans' Appeals (Board)
from a March 1994 rating decision of the Wilmington, Delaware
Regional Office (RO) of the Department of Veterans Affairs
(VA) which granted service connection for residuals of a
compression fracture of the thoracic spine, rated
noncompensable. In October 1996, the RO increased the rating
to 10 percent. In February 1997, the veteran testified
before a Member of the Board. In March 1997, the Board
remanded the case for additional development. In April 1998,
the RO increased the rating to 20 percent.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran's residuals of a compression fracture of the
thoracic spine are manifested by pain on motion with no more
than moderate limitation of motion even with consideration of
the factor of pain and demonstrable deformity of a vertebral
body; the spine is not ankylosed, and there is no cord
involvement.
CONCLUSION OF LAW
A rating in excess of 20 percent for residuals of a
compression fracture of the thoracic spine is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102,
4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5285, 5288,
5291 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
Service medical records show that the veteran sustained a
compression fracture of the T5 through T8 segments of the
spine in a motor vehicle accident in 1980. X-rays of the
thoracic spine in March 1993 revealed anterior angulation
second to anterior wedging of T8 vertebral body. Some
reaction degenerative changes were present at the disc space.
An old compression fracture was noted.
On VA general examination in September 1993, the veteran gave
a history of falling off his motorcycle and sustaining
fractures of the T4 through T9 in service. Examination of
the cervical and lumbar spine revealed no bony tenderness,
deformity, or paraspinal muscle spasm. Range of motion of
the cervical spine was lateral flexion to 40 degrees, flexion
and extension to 30 degrees, and rotation to 45 degrees
bilaterally. Range of motion of the lumbar spine was flexion
and extension to 90 degrees, lateral flexion to 20 degrees
bilaterally, and rotation to 35 degrees bilaterally. X-rays
of the thoracic spine revealed T7 was possibly slightly wedge
deformed. The intervertebral disc spaces between T6-T7, T7-
T8, and T8-T9 were possibly slightly narrowed.
A private electromyographic (EMG) report in December 1994
revealed normal EMG and nerve conduction studies of the right
lower extremity.
On VA examination of the spine in April 1996, the veteran
complained of pain and stiffness primarily in the back and
neck since the 1980 accident in service. Examination of the
neck revealed normal spinal curvature and absence of
paraspinal muscle spasm. Range of motion of the neck was
flexion to 30 degrees, extension to 30 degrees, lateral
flexion to 20 degrees, and rotation to 25 degrees.
Examination of the lumbar spine revealed no bony tenderness
or deformity. The spinal curvature was normal, and there was
no paraspinal muscle spasm. Range of motion of the lumbar
spine was flexion to 60 degrees, extension to 0 degrees, and
lateral flexion to 20 degrees. Examination of the lower
extremities revealed normal motor strength. The examiner
noted that the veteran continued to experience discomfort
aggravated by any prolonged standing, bending, or lifting
movement.
On VA examination of the spine in October 1996, the veteran
reported that he was presently working 50 hours a week as a
full-time postal clerk. He reported injuring his neck in a
vehicle accident in 1994. He reported receiving chiropractic
treatment for his neck and noted that the chiropractor also
adjusted his back. On physical examination, movements in the
examining room were performed without hesitation. Jogging in
place and jumping caused no symptoms. Examination of the
thoracic spine revealed mild kyphoscoliosis. Range of motion
was somewhat restricted to include military to the slouch
position 20 degrees; lateral bending, bilaterally to 25
degrees; and rotation, 20 degrees. There was minimal
tenderness over the spinous process of the mid-thoracic spine
with no tenderness over the paraspinal muscles or spasm. In
the face down position, hyperextension of the spine resulted
in thoracic symptoms. In the seated position, axial loading
of the shoulders caused some symptoms in the mid-thoracic
spine. Status post fracture dorsal spine by history and
discogenic dorsal spondylosis with residual
symptomatology/arthrofibrosis secondary to the injury were
diagnosed.
At a hearing before a Member of the Board in February 1997,
the veteran testified that he was currently employed as a
full-time postal clerk and worked 10 hours a day. He stated
that his work involved loading and unloading trucks, and
sorting mail. He testified that his work required a lot of
lifting and bending at the upper back. He reported that he
mostly stood during his 10-hour shift and that sitting put a
lot more strain on his back. He stated that he had not
missed work because of his back pain because he did not want
to lose his job. He stated that the pain progressively
worsened during the day and when he returned home at the end
of the day, he would recline and put a heating pad on his
back. He testified that he was not able to exercise or
participate in any type of athletic activity.
Pursuant to the Board's March 1997 remand, the RO requested
that the veteran provide information regarding all treatment
he has received for his thoracic spine since July 1993. He
did not reply.
A March 1998 magnetic resonance image (MRI) study of the
thoracic spine revealed no evidence of disc herniation or
cord compression of T6 through T10. There was no abnormal
signal intensity within the cord. There was wedging and
abnormality of the T7, T8, and T9 vertebral bodies, which had
superior endplate areas of depression. There was no disc
herniation or neuroforaminal stenosis. Minimal central
bulging of T3-T4 was noted. The neuroforamina was very well
visualized, and there was no evidence of foraminal disc
herniations. There was no abnormal marrow signal intensity
or abnormal signal intensity within the cord. Mild diffuse
desiccation and narrowing of disc spaces was noted,
compatible with mild degenerative changes, particularly at
T3-T4, and also at T6-T7, as well as wedging of T7, T8, and
T9 vertebral bodies. The impressions were degenerative
changes of the thoracic spine, with possible old healed
compression fractures of T7 and T9, which were clearly an old
process and disc bulges and disc space narrowing.
On VA examination of the thoracic spine in March 1998, the
veteran complained of pain in the dorsal spine, constant in
nature and minimal in intensity, which would flare up when he
had to carry items. Weather did not affect the pain. He was
able to sleep at night without disturbances. He took over-
the-counter medications such as Advil or Motrin. Examination
of the thoracic (dorsal) spine revealed minimal dorsal
scoliosis. Range of motion, measured with an inclinometer,
included left lateral bending to 35 degrees without
symptomatology, 20 degrees of right lateral bending with
tightness but no pain, right rotation to 10 degrees with
tightness and a dull pain, left rotation to 10 degrees with
only tightness. He was able to go from the military to the
slouched position revealing 10 degrees. In the upright
position, he felt tight but was relieved when he slouched.
In the face down position, he could hyperextend the spine
without any symptomatology. In the face down position,
palpation revealed tenderness in the T4-T9 spinous processes
with more sensitivity in the mid-portion and no sensitivity
or spasm in the paradorsal muscles. Axial compression of the
spine caused no dorsal symptomatology. The examiner reported
the last x-rays were taken in 1993, indicating decreased T6-
T9 disc spaces with wedging of the mid-thoracic T7. Status
post compression fracture, dorsal spine, residual symptomatic
arthrofibrosis, and degenerative joint disease, dorsal spine,
consider disc herniation, and symptomatic arthrofibrosis
dorsal spine were diagnosed. The examiner opined that the
veteran had mild impairment of the dorsal spine resulting in
fatigability, lack of endurance, weakness, and incoordinated
motion. The examiner further opined that when the veteran
had to do heavier work, there would be a flare up with a 50
percent decrease from the motion documented today. However,
it was noted that his workload had not knocked him out of
work since he left service, including hardware store sales
duties, maintenance at Dover Downs, and postal service
duties.
II. Analysis
The veteran contends that his residuals of a compression
fracture are severe enough to warrant a higher rating than 20
percent. The Board finds that his claim for increased
compensation benefits is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a). The United States Court of Appeals
for Veterans Claims (known as the United States Court of
Veterans Appeals prior to March 1, 1999) (Court) has held
that when a veteran claims that a service-connected
disability has increased in severity the claim is well
grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992).
The Board is also satisfied that all relevant facts have been
properly developed and that no further assistance is required
in order to comply with 38 U.S.C.A. § 5107.
In general, disability evaluations are determined by the
application of a schedule of ratings that represent, as far
as can be practicably be determined, the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4
§ 4.1. Separate diagnostic codes identify the various
disabilities.
In evaluating the veteran's request for an increased rating,
the Board considers the medical evidence of record. The
medical findings are then compared to the criteria set forth
in the VA's Schedule for Rating Disabilities. An evaluation
of the level of disability present must include consideration
of the functional impairment of the veteran's ability to
engage in ordinary activities, including employment, and the
effect of pain on the functional abilities. 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59. Furthermore, the Court has held
that the VA must consider the applicability of regulations
relating to pain. Schafrath v. Derwinski, 1 Vet. App. 589,
593 (1993).
In considering the residuals of an injury, it is essential to
trace the medical-industrial history of the disabled person
from the original injury, considering the nature of the
injury and the attendant circumstances, and the requirements
for, and the effect of, treatment over past periods, and the
course of the recovery to date. 38 C.F.R. § 4.41.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like. 38 C.F.R. § 4.40.
With respect to the joints, the factors of disability reside
in reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations:
(a) Less movement than normal (due to ankylosis, limitation
or blocking, adhesions, tendon-tie-up, contracted scars,
etc.),
(b) More movement than normal (from flail joint, resections,
nonunion of fracture, relaxation of ligaments, etc.),
(c) Weakened movement (due to muscle injury, disease or
injury of peripheral nerves, divided or lengthened tendons,
etc.),
(d) Excess fatigability,
(e) Incoordination, impaired ability to execute skilled
movements smoothly, and
(f) Pain on movement, swelling, deformity or atrophy of
disuse.
Instability of station, disturbance of locomotion,
interference with sitting, standing and weight-bearing are
related considerations. 38 C.F.R. § 4.45.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. Any reasonable doubt
regarding the degree of disability will be resolved in favor
of the veteran. 38 C.F.R. § 4.3. In DeLuca v. Brown,
8 Vet. App. 202 (1995), the Court held that codes that
provide a rating solely on the basis of loss of range of
motion must consider 38 C.F.R. §§ 4.40 and 4.45 (regulations
pertaining to functional loss of the joints due to pain,
etc.). Therefore, to the extent possible, the degree of
additional range of motion loss due to pain, weakened
movement, excess fatigability, or incoordination should be
noted.
The veteran's residuals of a compression fracture of the
thoracic spine are currently evaluated as 20 percent
disabling under Diagnostic Codes 5299-5292. However, this is
improper, as the service-connected disability at issue
involves the dorsal (thoracic), not the lumbosacral, spine.
Considering the extent of the veteran's condition in
conjunction with the rating criteria set forth in the
pertinent diagnostic codes, the Board concludes that the
service-connected thoracic spine disorder does not warrant an
increased rating under any of the applicable schedular
criteria. In an effort to afford the veteran the highest
possible evaluation, the Board considered all diagnostic
codes pertaining to ratings of the thoracic spine.
Diagnostic Code 5010 provides that arthritis due to trauma is
evaluated as degenerative arthritis. Arthritis is rated on
the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of
motion of the dorsal spine is rated a maximum 10 percent when
moderate or severe. 38 C.F.R. § 4.71a, Diagnostic Code 5291.
A higher rating requires ankylosis. Code 5288.
The most recent VA examination in March 1998 revealed that
the veteran had some limitation of thoracic spine motion.
But since ankylosis is not shown, a rating in excess of 10
percent for limitation of motion is not warranted.
Under Diagnostic Code 5285, the residuals of a fracture of
the vertebra warrant a 60 percent rating when there is no
evidence of cord involvement, but where abnormal mobility is
present requiring a neck brace (jury mast). A 100 percent
rating is warranted where there is cord involvement, the
veteran is bedridden, or long leg braces are required. In
other cases, residuals are to be rated on the basis of
definite limitation of motion or muscle spasm, adding 10
percent for demonstrable deformity of the vertebral body.
38 C.F.R. § 4.71a, Diagnostic Code 5285.
There is no medical evidence suggesting the veteran's
compression fracture residuals produce impairment of the
extent required for a 60 percent rating under Diagnostic Code
5285. The evidence does not show that he has spinal cord
involvement or abnormal mobility, is bedridden, or requires
the use of a brace. Since the evidence does show that he has
demonstrable deformity of a vertebral body, as indicated in
the most recent MRI study in March 1998, an additional 10
percent rating is warranted. Code 5285. This results in the
20 percent rating currently assigned.
The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293,
pertaining to intervertebral disc syndrome (which sometimes
includes symptomatology such as muscle spasms, among other
things) have also been considered; however, they are not
applicable as intervertebral disc syndrome has not been
diagnosed.
The Board recognizes that there are situations in which the
application of 38 C.F.R. § 4.40, and § 4.45 is warranted in
order to evaluate the existence of any functional loss due to
pain, or any weakened movement, excess fatigability,
incoordination, or pain on movement when the rating code
under which he/she is rated does not contemplate these
factors. See DeLuca, 8 Vet. App. at 202. Here, even with
consideration of these factors, the disability does not rise
to the level required for a further increase in the rating,
i.e., ankylosis.
The Board notes that no evidence has been presented by the
veteran to show that his disability caused marked
interference with his employment or required frequent periods
of hospitalization to warrant an extraschedular evaluation
under 38 C.F.R. § 3.321(b)(1). Since the appeal is from an
initial rating assigned, the Board has considered the
possibility of staged ratings, as suggested by Fenderson v.
West, 12 Vet. App. 119 (1999). However, at no time during
the appellate period is the disability shown to have risen to
the level required for a higher rating. As the preponderance
of the evidence is against the veteran's claim, the benefit-
of-the-doubt doctrine is inapplicable, and the claim for a
higher rating for residuals of a thoracic spine fracture must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
A rating in excess of 20 percent for residuals of a
compression fracture of the thoracic spine is denied.
George R. Senyk
Member, Board of Veterans' Appeals